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TMI Blog2022 (7) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Bankruptcy Code, 2016 read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has been filed by Janardan Prasad Mahto, through its Director namely Mr. Pramod Kumar Eshwa, authorised vide Board Resolution dated 27.09.2019 (Annexure-2) (hereinafter referred to as the Financial Creditor) for initiation of Corporate Insolvency Resolution Process in respect of Durga Developers Pvt.Ltd., having CIN U70200JH1997PTC007960, a corporate entity (hereinafter referred to as the Corporate Debtor). 3. It is submitted that the Corporate Debtor is in the business of real estate development of residential, commercial and rural properties for prospective buyers and sellers and Mr. Niloy Kumar Jha, one of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties is open, running and continuous and there have been in writing by the Corporate Debtor on 14th September, 2010, 25th April, 2011, 16th April, 2014 and 16th January, 2017. 5. It is further submitted that acknowledgement was issued each time before expiration of the prescribed period for recovery. Therefore, the claim remained alive till January, 2020. Therefore, the date of default of these proceedings would be within the period of limitation. It is submitted that the total amount of debt due is Rs.2,84,15,435/- and the date of default arose on 10th January, 2009 and was extended by acknowledgement from time to time upto 16th July, 2017. The amount outstanding comprises the principal sum Rs.46,01,000/- being the money advanced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor. ii. The applicant is not and cannot be a financial creditor and is at best a home buyer. iii. Even assuming that the purported Financial Creditor has a financial claim so as to approach this Adjudicating Authority, the purported claim is hopelessly barred by laws of limitation. iv. There is no loan advanced by the Financial Creditor and nothing will be borne out from the application. v. There is no interest rate at all mentioned anywhere nor has any demand for interest or repayment ever made. vi. The Corporate Debtor states that it is in the business of Real Estate development of residential and commercial prospective which it in turn sells to prospective buyers. In 2007, the applicant herein along with his wife Ms.Vini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e request was further renewed on 28th October, 2019 and 6th November, 2019 but the same was never replied to by the applicant. Copies of the numerous letters demanding payment are annexed as Letter-B. x. Never during the course of such transactions did the purported Financial Creditor ever utter of such loan or loan or has even claimed the same from the Corporate Debtor by issuing any demand letter. xi. The Corporate Debtor thus states that the purported claim of the purported Operational Creditor is false and baseless. 9. It is submitted that all other averments and allegations made in the petition are denied by the Corporate Debtor. 10. The Financial Creditor has filed a copy of the undertaking given on stamp paper along with cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed loan, (ii) the name of the Corporate Debtor purported to have taken a loan, or (iii) any term which binds the Corporate Debtor with any financial liability meaning thereby for how long and at what percent interest. He further submitted that there is no stamp or seal mentioned in the purported document being relied upon by the Financial Creditor. 13. It is further submitted that the said document merely mentions a few sums received by some individuals and relates to purported sum of Rs.28,00,000/- only. There is no detail of the purported sum of Rs.46,01,000/- as contended to having been given as loan to the Corporate Debtor. Therefore, no debt in terms of section 3(ii) being "a liability or obligation in respect of a claim which is due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T) (Ins) No. 251 of 2050). Utsav Securities vs. Timeline Buildcon ( NCLT Delhi) CP 1559 (PB) of 2019. Prayag Polytech Pvt. Ltd. Vs. Gem Batteries Pvt. Ltd. ( NCLT New Delhi) CP (AT) (Insolvency) No. 713 of 2019. 16. Having gone through the entire petition, reply, rejoinder along with documents placed on record by the Ld. Counsel for the parties, we noticed that the Financial Creditor has completely failed to prove any financial debt due and payable by the Corporate Debtor. Whatever documents have been placed on record by the Financial Creditor, do not prove any financial debt against the Corporate Debtor. 17. We have heard Ld. Counsel for the parties and we are, therefore, not at all satisfied with the petition and documents placed on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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